STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MICHAEL PAULSSON, )

)

Petitioner, )

)

vs. ) CASE NO. 96-4576

)

GULF COUNTY and )

THE STATE OF FLORIDA ) DEPARTMENT OF ENVIRONMENTAL ) PROTECTION, )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this cause on April 18, 1997, in Port St. Joe, Florida, by Don W. Davis, a duly designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Michael Paulsson, Pro Se

Route 1, Box 347B

Port St. Joe, Florida 32456 For Respondent Gulf County:

Timothy J. McFarland, Esquire Post Office Box 202

Port St. Joe, Florida 32457

For Respondent Department of Environmental Protection:

Lynette L. Ciardulli, Esquire Department of Environmental Protection Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

STATEMENT OF THE ISSUE

Whether the application of Respondent Gulf County (County) for permit to install a beach access road, constructed of oyster shell or dolomite, at the stumphole area on Cape San Blas should be granted.

PRELIMINARY STATEMENT

This matter began August 17, 1996, when Petitioner Michael Paulsson requested formal administrative proceedings with regard to issuance of a field permit for a beach access road to the County by Respondent Department of Environmental Protection (DEP).

Subsequently, the Petition For Administrative Hearing was referred to the Division of Administrative Hearings for conduct of formal proceedings.

Final hearing was convened on April 18, 1997, at which Respondents jointly presented the testimony of two witnesses and three exhibits which were admitted into evidence. Petitioner testified in his own behalf and presented one composite exhibit which was admitted into evidence. No transcript of the final hearing was provided.

The parties’ proposed recommended orders have been reviewed and utilized in the preparation of this recommended order.

FINDINGS OF FACT

1. On April 11, 1996, the County applied for a permit from DEP to install a beach access road constructed of oyster shell or dolomite over an area 275 feet in length by 12 feet wide at the stumphole area on Cape San Blas. The County owned the property at the site where a crude road bed to the beach already existed.

2. On that same date, County Manager Donald Butler met with a DEP field engineer, William Fokes, on the site to determine the linear footage that would be necessary for the access road at the stumphole area. Fokes then issued the field permit for the access road to be constructed of oyster shell or dolomite over an area 275 feet in length by 12 feet wide.

3. Since beach driving is permitted by the County in the area, the access road aids in preventing illegal crossing of beach dunes by motorists to get to the beach. Prior to issuance of the field permit and construction of the access road, the only legal motorist access to the beach was seven miles away.

4. Permits to drive on the beach are issued by the County. DEP rules require that all applicants proposing to conduct permitted activities on a beach use a designated beach access. This road will allow access to conduct permitted activities, thereby preserving and enhancing public beach access.

5. DEP will not permit a project that is expected to adversely impact the beach dune system. Although seaward of the

   Coastal Construction Control Line (CCCL) in the County, the area which is the subject of this field permit contained no dunes or vegetation since Hurricane Opal had flattened the area.

6. Such a project cannot be permitted if the project will adversely impact existing upland property or property of others. In the instant case, neither the Petitioner’s property, which is located two miles away from the project site, or property of other owners in the area will be adversely impacted.

7. The road is designed to be a non-rigid, pervious structure which causes less impact to any existing dune system. The road site is located on County property and provides logical and appropriate access.

8. The construction of the road did not violate DEP prohibitions on permitting activities having adverse impact to marine turtles since the construction permit expired prior to the turtle nesting season.

9. A requirement of field permit issuance is that the applicant and the DEP area engineer meet on site and review the project. This event occurred on April 11, 1996, when Butler and Fokes met on the site. Fokes determined that the project was within field permitting guidelines and issued the permit.

10. Fokes was authorized to issue the field permit because the project fell in DEP’s category of a driveway or similar

    activity. Expected impacts of construction of the access road and a driveway are deemed similar by DEP.

11. Subsequent review by DEP staff of Fokes’ issuance of the field permit determined that sufficient information had been provided to him for issuance of the permit, that the project falls in the category of minor activity and that no adverse impact to dunes, property of others, beach access or nesting marine turtles is expected.

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over this subject matter and the parties to this action pursuant to Section 120.57(1), Florida Statutes.

13. The County, as applicant for the permit, has the ultimate burden of proof in demonstrating entitlement to subject permit. Department of Transportation v. J.W.C. Company, Inc., 396 So. 2d 778 (Fla. 1st DCA 1981).

14. Permits are required for construction seaward of the CCL. Section 161.053, Florida Statutes.

15. The applicant has demonstrated compliance with special siting and design criteria contained in Section 161.053, Florida Statutes, and Rule 62B-33.005, Florida Administrative Code, requiring that the project ensure protection of the beach dune system, proposed or existing structures, adjacent properties and preservation of public beach access.

RECOMMENDATION

Based upon the foregoing findings of fact and the conclusions of law, it is,

RECOMMENDED:

That a final order be entered confirming the grant of the field permit which is the subject of this proceeding.

DONE and ENTERED this 9th day of May, 1997, in Tallahassee, Leon County, Florida.

DON W. DAVIS

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 9th day of May, 1997.

COPIES FURNISHED:

Lynette L. Ciardulli, Esquire Department of Environmental Protection

3900 Commonwealth Boulevard, Mail Station 35

Tallahassee, FL 32399-3000

Michael Paulsson, Pro Se Route 1, Box 347B

Port St. Joe, FL 32456

Timothy J. McFarland, Esquire Post Office Box 202

Port St. Joe, FL 32457

Virginia B. Wetherell, Secretary Department of Environmental Protection 3900 Commonwealth Boulevard

Tallahassee, FL 32399-3000

Perry Odom, Esquire

Department of Environmental Protection 3900 Commonwealth Boulevard

Tallahassee, FL 32399-3000

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of this recommended order. Any exceptions to this recommended order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 96-004576

Orders for Case No: 96-004576